80 U.S.

244
20 L.Ed. 539
13 Wall. 244

BATH COUNTY
v.
AMY.
December Term, 1871

ERROR to the Circuit Court for the District of Kentucky; the case being
thus:
The 11th section of the Judiciary Act of 1789, enacts that
'The Circuit Court shall have original cognizance concurrent with the
courts of the several States, of all suits of a civil nature at common law, . .
. between a citizen of the State where the suit was brought, and a citizen
of another State.'
The 14th section of the same act, referring to certain courts of the United
States, including the Circuit Courts, enacts:
'That all the before-mentioned courts of the United States shall have
power to issue writs of scire facias, habeas corpus, and ALL other writs
not specially provided for by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable to the principles
and usages of law.'
An act passed in 1813 by the legislature of Kentucky (which State was
admitted into the Union A. D. 1792), enacts:
'SECTION 2. That it shall be lawful for the person at whose instance a
mandamus may be issued, to traverse the truth of any one or more of the
facts asserted in the return made to such writ, the traverser concluding the
same by an appeal to the country for the trial of the contested facts upon
which issue may have been taken by such traverse. A jury shall be
empanelled and sworn by order of the court having jurisdiction thereof,
subject to the same rules and regulations, and with power to such courts to
superintent and control such jury, by instructing them in points of law
which may arise in the course of such trial, or of granting new trials in the

same manner, and to be governed by the same principles which are

applicable to the trial by jury in other cases at common law.
'SECTION 3. It shall be the duty of such court upon the result of any such
finding as aforesaid, to pronounce judgment thereon in favor of either
party according to law, and to award judgment for the costs of suing out or
defending such mandamus as the case may be, in favor of the successful
party, upon which execution shall and may be issued as in other cases.'
And, finally, an act of Congress of May 19th, 1828, enacts:
'That the forms of mesne process, except the style, and the forms and
modes of proceeding in suits in the courts of the United States held in
those States admitted into the Union since the 29th day of September, in
the year 1789, in those of common law, shall be the same, in each of the
said States respectively, as are now used in the highest court of original
and general jurisdiction of the same.'
With those statutes, Federal and State, in force, the legislature of
Kentucky incorporated, A. D. 1852, the Lexington and Big Sandy
Railroad Company. By the charter of the railroad the county courts of the
different counties, through which it was to run, were authorized to
subscribe to the stock of the road, and to pay their subscriptions by
borrowing money; making the money borrowed payable in the way in
which the county courts should deem most advisable. The interest on all
such sums borrowed was to be provided for in like manner, provided that
all taxes laid to pay either principal and interest, should be sacredly
appropriated to such purpose and no other. A subsequent act required the
county courts to issue bonds, and to proceed to levy, assess, and collect a
tax to pay the interest thereon, according to the true intent and meaning of
the previous act.
The county of Bath subscribed $150,000, and issued one hundred and fifty
bonds of $1000 each, payable thirty years from date, with interest
semiannually, for which coupons were annexed. And the company having
indorsed them, sold, and put them into circulation. The county court
levied the tax and paid the interest for five years, and then stopped
payment.
In this state of things one Amy, of New York, being the holder of eightytwo of the bonds, with the overdue and unpaid coupons, in November,
1866, made a written demand upon the justices, who composed the
county court of Bath County, requiring the court forthwith to levy the
necessary tax to pay his coupons, and notified to each of the judges that if

they did not do so, he would on the second day of the next term of the
Circuit Court of the United States, sitting in the District, move that court
for the writ of mandamus requiring them to do it. No tax was levied; and
at the next term of the Circuit Court, Amy accordingly filed an affidavit in
the nature of an information, setting forth specifically his case, and
concluding with a prayer for a mandamus requiring the tax to be levied.
The court granted a rule against the county to show cause why the writ
should not issue. The county came and craved oyer of the bonds and
coupons, which was had, upon which it moved the court to discharge the
rule; and also filed a response to the rule setting forth eleven points of
defence. By agreement of counsel a general traverse of the facts set out in
the response was entered on the record, and the law and facts submitted to
the court for trial and decision. Upon the trial, the court found the issues
for the plaintiff, and gave judgment awarding a peremptory writ of
mandamus. To reverse this judgment the county brought the case here.
The chief ground of the argument of their counsel, Messrs. M. Blair, J. G.
Carlisle, and J. B. Beck, being that under the 14th section of the act of
September 24th, 1789, the Circuit Court of the United States had no
jurisdiction to issue a writ of mandamus, there having been no previous
judgment of the court in favor of the party holding the obligations, and no
previous attempt made by it to enforce their payment by its ordinary
process.
Messrs. J. W. Stevenson, and H. Myers, contra, and in support of the
ruling below:
The argument is that the Circuit Court had no jurisdiction until the relator
had reduced his demand to judgment, and had an execution returned, 'no
property' thereon. But in no case has this court decided that this was a
prerequisite to the jurisdiction.
Mandamus is a common law action, so held by this court.1 The act of
1813 of Kentucky, in which State the cause originated, makes the
proceedings by mandamus there also a suit of a civil nature at common
law; not a mere incident to another suit. The parties plead to issue. Issues
of fact are to be tried by jury; issues of law, by the court. Judgment is to be
awarded, and execution issued thereon. This act of 1813 was in force
when the act of Congress of May 19th, 1828, was adopted, providing that
the proceedings in suits at common law, in States admitted to the Union
since 1789, shall be the same in the National courts in each of said States,
as are now used in the highest courts of original and general jurisdiction of
the same.

Now by the course of proceeding in Kentucky, it is not necessary that a

party who has a right to have a tax levied by a county court or city council
to pay his demand, should reduce the demand to judgment before
applying for the writ of mandamus requiring the levy of the tax. This is
settled by adjudicated cases,2 and that where a party has the right to have a
county court levy a tax, upon their refusal, after demand, he may proceed
in the first instance for the writ.
Certainly this court, under the act of Congress of 1828, will award to the
citizen of another State the same relief that the State court would give one
of its own citizens in a case arising upon the statute laws of that State.
Mr. Justice STRONG delivered the opinion of the court.

It must be considered as settled that the Circuit Courts of the United States are
not authorized to issue writs of mandamus, unless they are necessary to the
exercise of their respective jurisdictions. Those courts are creatures of statute,
and they have only so much of the judicial power of the United States as the
acts of Congress have conferred upon them. The Judiciary Act of 1789, which
established them, by its 11th section, enacted that they shall have original
cognizance, concurrently with the courts of the several States, of 'all suits of a
civil nature at common law, or in equity,' between a citizen of the State in
which the suit is brought and a citizen of another State, or where an alien is a
party. While it may be admitted that, in some senses, the writ of mandamus
may properly be denominated a suit at law, it is still material to inquire whether
it was intended to be embraced in the gift of power to hear and determine all
suits at common law, of a civil nature, conferred by the Judiciary Act. At the
time when the act was passed it was a high prerogative writ, issuing in the
king's name only from the Court of King's Bench, requiring the performance of
some act or duty, the execution of which the court had previously determined to
be consonant with right and justice. It was not, like ordinary proceedings at law,
a writ of right, and the court had no jurisdiction to grant it in any case except
those in which it was the legal judge of the duty required to be performed. Nor
was it applicable, as a private remedy, to enforce simple common-law rights
between individuals. Were there nothing more, then, in the Judiciary Act than
the grant of general authority to take cognizance of all suits of a civil nature at
common law, it might well be doubted whether it was intended to confer the
extraordinary powers residing in the British Court of King's Bench to award
prerogative writs. All doubts upon this subject, however, are set at rest by the
14th section of the same act, which enacted that Circuit Courts shall have
'power to issue writs of scire facias, habeas corpus, and all other writs not
specially provided for by statute, which may be necessary to the exercise of

their respective jurisdictions and agreeable to the principles and usages of law.'
Among those other writs, no doubt, mandamus is included; and this special
provision indicates that the power to grant such writs generally was not
understood to be granted by the 11th section, which conferred, only to a limited
extent, upon the Circuit Courts the judicial power existing in the government
under the Constitution. Power to issue such writs is granted by the 14th section,
but with the restriction that they shall be necessary to the exercise of the
jurisdiction given. Why make this grant if it had been previously made in the
11th section? The limitation only was needed.
2

This subject has heretofore been under consideration in this court, and in
McIntire v. Wood,3 it was unanimously decided that the power of the Circuit
Courts to issue the writ of mandamus is confined exclusively to those cases in
which it may be necessary to the exercise of their jurisdiction. The court said:
'Had the 11th section of the Judiciary Act covered the whole ground of the
Constitution, there would be much reason for exercising this power in many
cases wherein some ministerial act is necessary to the completion of an
individual right arising under laws of the United States, and the 14th section of
the act would sanction the issuing of the writ for such a purpose. But, although
the judicial power of the United States extends to cases arising under the laws
of the United States, the legislature have not thought proper to delegate the
exercise of that power to its Circuit Courts, except in certain specified cases.'
And in McClung v. Silliman,4 this court said, when speaking of the power to
issue writs of mandamus: 'The 14th section of the act under consideration (the
Judiciary Act) could only have been intended to vest the power . . . in cases
where the jurisdiction already exists, and not where it is to be courted or
acquired by means of the writ proposed to be sued out.' In other words, the writ
cannot be used to confer a jurisdiction which the Circuit Court would not have
without it. It is authorized only when ancillary to a jurisdiction already
acquired. The doctrine asserted in both these cases was conceded to be correct
by both the majority and the minority of the court in Kendall v. The United
States.5 The power to issue a writ of mandamus as an original and independent
proceeding does not, then, belong to the Circuit Courts.

It has been argued, on behalf of the defendant in error, that the writ of
mandamus is a civil action in Kentucky; that the proceedings therein were
regulated by an act of the legislature of that State, approved January 8th, 1813,
still in force, which directed how a traverse to the return shall be tried in the
State courts, and what judgment may be pronounced, and that the act of
Congress of May 19th, 1828, directed that the proceedings in suits at common
law in States admitted to the Union since 1789, of which Kentucky is one, shall
be the same in the Federal courts as those used, when the act was passed, in the

highest courts of original and general jurisdiction in those States. Hence it is

inferred that the law of Kentucky respecting mandamus has been adopted as a
part of the rule of practice of the United States Circuit Court for that State. The
argument rests on a misapprehension of the meaning of the act of 1828. It was a
process act, designed only to regulate proceedings in the Federal courts after
they had obtained jurisdiction; not to enlarge their jurisdiction. The purpose
was to make the forms of process and forms and modes of proceeding in those
courts correspond with the forms and modes in use in the State courts. The
words of the act are, 'that the forms of mesne process, except the style, and the
forms and modes of proceeding in suits in the courts of the United States held
in those States admitted into the Union since the 29th day of September, in the
year 1789, in those of common law, shall be the same, in each of the said States
respectively, as are now used in the highest court of original and general
jurisdiction of the same.' It is quite too much to infer from this an enlargement
of jurisdiction, or an adoption of all the powers which the State courts then had.
There is, then, no act of Congress which has conferred upon Circuit Courts
authority to issue the writ of mandamus as an original proceeding, or at all,
except when necessary for the exercise of the jurisdiction conferred upon them
by law.
4

Applying this rule to the present case it is decisive. The relator's claim for
payment had not been brought to judgment in the Circuit Court, nor had it been
put in suit. His application for a mandamus was, therefore, an original
proceeding, neither necessary nor ancillary to any jurisdiction which the court
then had. For this reason it should have been denied, and the judgment that a
peremptory mandamus should issue was erroneous.

JUDGMENT REVERSED, and the cause remanded with instructions to

DISMISS THE PETITION FOR A MANDAMUS.

Kendall v. The United States, 12 Peters, 615.

Justices of Clarke County v. Turnpike Company, 11 Ben Monroe, 154; Maddox

v. Graham, 2 Metcalfe, 56.

7 Cranch, 504.

6 Wheaton, 601.

12 Peters, 584; see also The Secretary v. McGarrahan, 9 Wallace, 311.